For anyone new applying H1B Visa would have some basic questions like :
- What is H1B Visa cap and how it is determined ?
- What petitions are included, and what are not?
- What about Chile and Singapore numbers? Etc
With this article, I will try to answer some of the most commonly asked questions.
What is H1B Visa Cap ?
Do not be mislead by the word “Cap” as it can mean many things. In context of H1B visas, it is nothing but the total number of petitions or maximum limit of petitions count approved by US Congress for any given fiscal year..it has nothing to do with regular cap that we wear 🙂
- H1B Regular Quota Cap: This is loosely referred as general quota/cap or regular quota or non-advanced degree quota/cap. The annual cap is set as 65,000. It includes 6,800 petitions set aside for Chile-Singapore under free trade agreement and called as H1-B1 program.
- H1B Advanced Degree Cap: This is loosely referred as Masters’ quota/cap, US Masters degree cap, or US advanced degree etc. The H1B advanced degree annual cap is set as 20,000.
- H1-B1 Chile-Singapore Cap: This is the number set aside for applicants from Singapore and Chile. This annual cap is 6,800 and the number is taken out from Regular Cap. Basically it means that effective regular cap petitions quota left after this is 65,000 – 6,800 = 58,200. But, it works out differently, read below.
There are no changes to the cap count for H1B FY 2021 season. There were some discussions done in the past as part of Obama Immigration Reform to increase H1B cap to 110,000. Since President Trump and various New H1B Visa Bills, it does not look like that will happen.
What is H1B Regular Cap Quota ? Who Qualifies for it ?
It is the general quota limit for H1B visa petitions for anyone who is eligible to file a H1B application. Usually, all the general H1B requirements such as bachelors degree, job falling in specialised skills apply here. In some cases, if there is no bachelors, but the candidate has a lot of experience, each year of education can be equated with 3 years of experience. The regular quota cap petitions do NOT have any requirement to have US masters or higher degree. In general, all petitions fall under this quota cap
What is H1B Master’s Cap Quota ? Who Qualifies For H1B Advanced Degree Cap?
A person who has obtained a U.S. Master’s degree or higher qualifies for this cap quota. A person who has obtained Associate or Bachelor’s degree from US does NOT qualify for this cap. Similarly, a person who has obtained a foreign (i.e. non-US) Master’s degree or higher also does NOT qualify for this. In general, the high level rule is that anyone who qualifies for H1B filing, with a US Masters degree or higher is eligible for this quota cap. You may watch below short video on H1B cap details.
How is H1B Regular Cap Calculated? Is it Less than 65,000 Per year ?
As H1B regular quota includes 6,800 petitions that are for Singapore and Chile free trade agreement, they will less than 65,000 per year. The following equation is used to get the total count for regular quota cap:
Current fiscal year Regular Cap quota = XXXX
Singapore – Chile Free Trade agreement Petitions (H1-B1 Cap) filed in Previous Fiscal Year = YYYY
H1B Regular Cap for XXXX = Annual Cap for XXXX (i.e. 65,000) – H-1B1 Cap for XXXX (i.e. 6,800) + Unused H-1B1 numbers from Previous year YYYY + Additional petitions accepted by USCIS as Buffer for denials, rejections, etc. (To clarify, USCIS said in the past that they accept/select in lottery some Extra petitions for a year to account for the petitions that may get denied, rejected or withdrawn during a fiscal year. )
- The unused H1B1 petitions for the previous year are first added to the cap and consumed. So when USCIS publishes a cap count of X number that number already includes the unused H-1B1 number of the previous year. For official statement on this, look at the second question at this USCIS link. You can also refer to this document, which tells that these numbers need to be utilised within first 45 days of the new cap season. The H-1B1 category is heavily under-utilised. As evident from old FY-09 number, only 700 petitions were used (which means 6,100 petitions were added to FY-10 cap). [FY-09 was the year quota got over within first few days, and this shows the low demand for H-1B1 even when there was a huge demand for H-1B]
- USCIS has historically accepted more H-1B petitions than available cap numbers based on the assumption that some petitions will be denied, rejected or withdrawn. These numbers are not published separately and so it not possible to what these numbers are. For official statement on this, look at the third question at this USCIS link.
- The count of petitions for the current fiscal year only includes petitions that reached USCIS prior to final receipt date (if already declared) and which are either pending processing or have been approved. It doesn’t include any petitions that have already been denied, rejected or withdrawn on the cap publication date.
What Happens After Advanced Degree Cap is Reached, but Regular Cap is Still Open?
Once the Advanced Degree cap is reached, eligible petitions for this cap are routed to Regular Cap. If one looks at historical numbers, the pace at which Regular Cap gets consumed increased once the Advanced Degree Cap is reached.
(Applicable to year when NO H1B Lottery ) Why are the Cap Counts Always In Multiple of Hundreds?
This applies to only scenarios, when the cap lasts beyond 5 days and there is NO H1B lottery. In the pastI don’t know the actual reason to this, but my assumption is that they always round the numbers to nearest hundred for publishing purpose. So instead of publishing count of 21,300 they would publish the number 21,000.
(Applicable to year when NO H1B Lottery ) How can USCIS Determine that the Cap has Reached To Precision?
This applies to only scenarios, when the cap lasts beyond 5 days and there is NO H1B lottery. We don’t know the actual reason to this, but I will explain my understanding. Let’s say, there are 5,800 unused H-1B1 numbers from previous year. So the cap becomes 64,000 excluding any numbers set aside to account for future denials/rejections/withdrawals. Now, USCIS will determine the historical denial/rejection/withdrawal rate and figure it’s 5% (a hypothetical number) w/ a margin of error of 1% (again a hypothetical number). So the range becomes 4% to 6%, which turns out to be 67,600 to 68,900 (based on a size of 65,000 – 6,800 + 5,800). Once USCIS receives enough petitions in this range, they would declare the cap as closed. This way they don’t need to be precise w/ the count.
When is H1B Cap Lottery Conducted ?
First, the official term USCIS uses is random selection (lottery reminds one of Vegas gambling).
- H1B Visa Petitions Lottery History : Previously, until fiscal year 2020, when there was extreme demand and more petitions were filed than the available H1B cap numbers, USCIS would accept the petitions under the H1B cap for first 5 days, from the start date of the season ( April 1st to April 5th). If the cap is reached within first 5 days of new filing season, they would use a computer based random selection to select the H1B petitions to meet the cap. Read regulation info on 5 day rule for H1B Lottery. First it used to be conducted for Advanced Degree or Masters cap. The ones that didn’t make through this were added to Regular Cap, and another random selection was done for these. This process changed from FY 2021 season, since the introduction of H1B Registration Rule.
- H1B Registration Lottery : From H1B Visa 2021 Season, USCIS introduced H1B registration rule, but the concept of the H1B lottery still applies, if USCIS receives more petitions than the total cap. The order of the Lottery has changed now, where first the lottery is done for the regular cap and then unselected masters cap petitions are separated and lottery is done for them again.
You may check out How does H1B Visa Lottery Work ?
What are Cap-Exempt Petitions?
H1B Cap-exempt petitions can be filed, if they fall under the below categories :
- to extend the amount of time a current H1B worker may remain in the US (aka H1B extension)
- to change the terms of employment for current H-1B workers (aka H-1 amendment)
- to allow current H-1B workers to change employers (aka H-1 transfer)
- to allow current H-1B workers to work concurrently in a second H-1B position (aka concurrent H-1)
- by an exempted employer like non-profit, hospital, university etc
These petitions can be filed anytime during the year, and are not subject to April 1 filing date and October 1 start date.
Is the H1B Cap Opened Again After Being Declared Closed?
This might disappoint you, but the answer is No. There has never been an instance of cap being opened again once it has been declared closed. One should not rely on this. This may change slightly in the New H1B registration rule that is planned for FY 2021, as they mention that they may open up registrations, if they feel the numbers are not enough. We are yet to see the details.
You may check out the latest updates for the upcoming H1B season at : H1B Visa 2021 Season
Did I miss anything ? Add your thoughts.